Family Law Roundup

SharpThinking

No. 78 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. December  2012

Assembly Increases Sanctions for Visitation Violations

            The General Assembly has increased the sanctions for custodial parents who violate visitation orders. 

            Effective August 21, 2012, the legislature added to 625 ILCS 5/7-701 (a statute previously reserved for parents who failed to pay child support) language making the violation of a visitation order grounds for driver’s license suspension.  In P.A. 97-1047, it also toughened other enforcement mechanisms for visitation abuse as set forth in 750 ILCS 5/607.1. 

            Under the prior version of § 7-701, a parent who was 90 days or more delinquent in child support payments could have his or her driver’s license suspended.  The new act adds visitation abuse as a violation that may result in license suspension.  Driving privileges can be suspended until a court determines that the non-compliant parent has attained “sufficient compliance” to warrant a reinstatement of driving privileges.

            Previous sanctions for violating a visitation order included: modification of custody; counseling; make up time; supervised visits or “other appropriate relief deemed equitable.”  While the last provision, “other appropriate relief” gave judges the liberty to impose serious sanctions, the new act clearly enumerates additional sanctions that the legislature has deemed appropriate.  In addition to driver’s license suspension, the newly enumerated sanctions include placing the non-compliant parent on probation; imprisoning him or her for up to 6 months, and fining him or her up to $500.  750 ILCS 5/607.1(5)(c-1).

Guardian May Seek to Dissolve Ward’s Marriage

            A guardian has the authority to seek permission to file a dissolution of marriage petition on behalf of her ward, the Illinois Supreme Court recently held.

            Ruling in Karbin v. Karbin, 2012 IL 112815, the court said, “we believe a guardian has the authority to seek permission from the court to file a dissolution petition on behalf of the ward if such petition is found to be in the ward’s best interest.”  In determining what is in the ward’s best interest the court held that such a petitioner must satisfy a clear and convincing burden of proof.  The heightened burden was set because dissolution cases present issues involving personal interests more complex and important than those typically present in civil law suits, the court said.

            In Karbin, the guardian, who also was the daughter of the ward, filed a response to a dissolution petition filed by the husband, her adoptive father.  Thereafter, the husband withdrew his petition.  As a result, the ward was treated as the petitioner for divorce purposes.  The husband in turn sought to have the guardian’s petition dismissed based on lack of standing.  The circuit and appellate courts held that the guardian did not have standing and dismissed the action.  The Supreme Court reversed and remanded.

            Its decision overturned the previous Supreme Court decision of In re Marriage of Drews, 115 Ill.2d 201 (1986), which held that a guardian could not file for dissolution on behalf of a ward.  In Drews the court interpreted §§ 11a-17 and 11a-18 of Probate Act (755 ILCS 5/11a-17, 11a-18) narrowly, concluding a guardian has only the powers explicitly set forth in the act.  Section 11a-17 states that a guardian’s duties include providing for the ward’s “support, care, comfort, health, education and maintenance, and such professional services as are appropriate.”  Section 11a-18 specifies the duties to include “the care, management and investment of the estate.”  Drews concluded that because filing for dissolution was not specifically set forth therein, it was not permissible.

            In overturning its prior decision, the court in Karbin reviewed cases rendered after Drews.  Three years after Drews, the Supreme Court had abandoned the notion that powers which fall outside the enumerated list must be deemed prohibited.  In In re Estate of Longeway, 133 Ill.2d 33 (1989), the court read § 11a-17 expansively enough to authorize a plenary guardian to make end-of-life decisions regarding life-sustaining measures, a decision upheld in In re Estate of Greenspan, 137 Ill.2d 1 (1990).  Both decisions relied on a notion of “implied authority” rather than requiring explicit authority for guardians.

            In confirming the “implied authority” analysis, Karbin stated that “[b]y construing the Probate Act to prohibit a guardian from being able to seek permission from the court to bring a dissolution action on behalf of the ward, we would be improperly carving an exception to the broad powers of a guardian set forth by the General Assembly.”  The court found no compelling reason to prevent a guardian from seeking permission to institute a dissolution action since guardians already make inherently personal decisions for a ward.  Furthermore, the court reasoned, preventing a guardian from filing, responding to or continuing a dissolution action places the ward in a potentially precarious situation, which could result in abuse, neglect or exploitation at the hands of the competent spouse.

Court Reforms Marital Settlement Agreement Despite Language

            The Appellate Court in In re Marriage of Bolte, 2012 IL App (3d) 110791, reformed a Marital Settlement Agreement (“MSA”) in which the parties used the term “rehabilitative maintenance” and said it was not modifiable for 14 years.  In Bolte, the wife learned that she suffered from myasthenia gravis, a progressive disabling disease, seven years prior to the parties’ separation.  The parties amicably resolved the economic issues between themselves in a written MSA which was incorporated into the dissolution judgment.  The parties agreed to a monthly set amount of maintenance, which was reviewable up to the husband’s retirement. The MSA also included a waiver for all other claims arising out of the marriage, specifically referring to maintenance.

            Fourteen years after dissolution, the husband retired and sought to have the maintenance obligation terminated.  The trial court terminated the husband’s maintenance obligation and prevented the wife from receiving “permanent maintenance” per the waiver language in the MSA.  The wife appealed.

            The appellate panel reversed, finding that neither party could have reasonably believed it would take the wife nearly 20 years to rehabilitate.  The court said the “trial court’s recitation of the definition of ‘rehabilitative’ is unpersuasive” and reasoned that labeling a maintenance award rehabilitative does not make it “a foregone conclusion that it is rehabilitative when it otherwise bears all the hallmarks of traditional permanent maintenance.”  Despite the language and the stated term, the court found that the parties had essentially described and agreed to a permanent maintenance award.

            This case is illustrative of the need for the practitioner to fully understand the distinctions between permanent and rehabilitative maintenance and to be aware of the need to carefully craft the marital settlement agreement to achieve the goal at hand.  Using terminology without more is insufficient.

                                                             Rebecca L. Reinhardt, Rreinhardt@lotsharp.com, 618-242-0246

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